In Hunters Capital, LLC, et al. v. City of Seattle, No. C20-0983 TSZ (W.D. Wash. Jan. 13, 2023), Washington District Judge Thomas S. Zilly granted in part motions for sanctions against defendants and selected plaintiffs for mobile device data spoliation, issuing adverse inference instructions against defendant for deletion of thousands of text messages by City representatives and also allowed defendant to present evidence of spoliation by one plaintiff individual.

Case Discussion

This case related to the City’s alleged support and encouragement of the Capitol Hill Occupied Protest (“CHOP”) from June 8 to July 1, 2020, and its impact on local property owners, businesses, and residents. Plaintiffs requested sanctions from the deletion of thousands of text messages from City-owned phones of City officials, including:

• Mayor Jenny Durkan: Despite being named in Plaintiffs’ preservation letters starting in late June 2024, the City failed to issue Mayor Durkan a litigation hold until July 22, 2020. By that time, Mayor Durkan had already deleted thousands of text messages from her City-owned phone. As stated by Judge Zilly, Mayor Durkan’s various reasons for deleting her text messages (including dropping her City-owned iPhone 8 Plus into the water while she was visiting a beach, stopping iCloud synchronization and setting all text messages stored in iCloud to be automatically deleted in 30 days) “strain credibility”.
• SPD Chief Carmen Best: She was also named in Plaintiffs’ preservation letters, but the City did not issue Chief Best a litigation hold until July 27, 2020. Despite the litigation hold and her legal obligation to preserve any CHOP-related text messages, Chief Best’s City-owned iPhone did not contain any text messages dated before September 2, 2020, which is the day she returned her phone to the City following her resignation. During her deposition, Chief Best admitted that she deleted text messages from her phone periodically.
• SFD Chief Harold Scoggins: Chief Scoggins was also named in Plaintiffs’ preservation letters, but the City did not issue a litigation hold for him until July 22, 2020. Chief Scoggins had no text messages from before October 8, 2020, because on that day he reset his phone at an Apple Store after he allegedly forgot his numeric passcode.

There were four other City officials for whom litigation holds were issued a month or more after preservation letters were issued with all (or virtually all) of their text messages having been deleted due to phone resets.

Conversely, the City alleged that certain plaintiffs were also responsible for mobile device data spoliation through the deletion of text messages.

Judge’s Ruling

Despite the fact that the City had recreated over 161,000 deleted text messages (including 2,868 of Mayor Durkan’s, 9,348 of Chief Best’s, and 15,414 of Chief Scoggins’s messages), Judge Zilly stated: “The City, however, ignores that it has not recovered any deleted text messages exchanged directly between Mayor Durkan and Chief Best, Mayor Durkan and Chief Scoggins, or Chief Scoggins and Chief Best, during the CHOP period…The parties do not dispute that these high-level officials communicated directly with each other via text message during the CHOP period…The Court therefore concludes that a substantial number of the deleted text messages are lost and cannot be restored or replaced through additional discovery.”

Judge Zilly also stated: “The City’s failure to timely notify these officials of their obligation to preserve ESI, its failure to follow its own protocols to maintain City text messages, and its long delay in notifying Plaintiffs of the deleted messages…lead the Court to conclude that the City’s spoliation was much more egregious than a failure to achieve ‘perfection.’ The City cannot reasonably dispute that significant evidence is missing in this action and can never be recovered.” He also noted that “the missing text messages at issue in this action are not from low-level City employees. Rather, Plaintiffs have been deprived of text messages from multiple officials representing the highest levels of City government and those responsible for establishing and implementing the City’s response to CHOP. Of great significance is the fact that any direct messages between these officials, such as those between Mayor Durkan and Chief Best or between Mayor Durkan and Chief Scoggins, cannot be recovered. The Court finds that the deleted text messages threaten to interfere with the rightful decision in this case, id., and sanctions against the City are clearly warranted.”

However, while finding that “that the City acted with the requisite ‘intent to deprive,’ within the meaning of Rule 37(e)(2)”, Judge Zilly chose to “issue an adverse instruction at trial that the jury may presume that the City officials’ text messages (deleted after Plaintiffs commenced this action) were unfavorable to the City” and also awarded “attorneys’ fees and costs (including expert-related costs) incurred as a result of the City’s spoliation of evidence” (which ultimately came to $600,000 as part of a $3.65 million settlement in the case). Judge Zilly also awarded sanctions for the defendant, allowing defendant to present evidence of mobile device data spoliation by one plaintiff individual (which became moot because of the settlement).

So, what do you think? Are you surprised that the sanctions weren’t greater for mobile device data spoliation on both sides? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today. Check out Kelly Twigger’s discussion of the case here!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.